EXHIBIT 10.5
COVER PAGE
The capitalized terms in this Lease shall have the meanings ascribed to
them below, and each reference to such term in the Lease shall incorporate such
meaning therein as if fully set forth therein.
LANDLORD: WEEKS REALTY, L.P., a Georgia limited partnership, with its
principal office located at 0000 Xxxx Xxxxx, Xxxxxxxx, Xxxxxxx
00000
TENANT: BIO-SHIELD TECHNOLOGIES, INC., a corporation duly organized and
existing under the laws of the State of Georgia.
LEASED
PREMISES: (a) Address: 4405 International
(b) Suite: B-109
(c) Rentable Area: 6,885 square feet
(d) Pro Rata Share:____________________________
(e) Project:___________________________________
TERM: Three (3) years
COMMENCEMENT DATE: May 1, 1997
TERMINATION DATE: April 30, 2000
BASE RENT
(PER YEAR): $48,195.00
BASE YEAR: 1997
SECURITY DEPOSIT: $4,262.96.00 (?? check with Xxxxx)
TENANT'S AGENT: ________________
_______________________________
LEASE AGREEMENT
TABLE OF CONTENTS
SECTION PAGE
------- ----
1 LEASED PREMISES..................... 1
2 TERM................................ 1
3 RENTAL.............................. 1
4 DELAY IN DELIVERY................... 3
5 USE OF LEASED PREMISES.............. 3
6 UTILITIES........................... 4
7 ACCEPTANCE OF PREMISES.............. 4
8 ALTERATIONS, MECHANICS' LIENS....... 4
9 QUIET CONDUCT/QUIET ENJOYMENT....... 5
10 FIRE INSURANCE, HAZARDS............. 5
11 LIABILITY INSURANCE................. 6
12 INDEMNIFICATION..................... 6
13 WAIVER OF CLAIMS.................... 7
14 REPAIRS............................. 7
15 SIGNS, LANDSCAPING.................. 8
16 ENTRY BY LANDLORD................... 8
17 TAXES AND INSURANCE INCREASE........ 8
18 ABANDONMENT......................... 10
19 DESTRUCTION......................... 10
20 ASSIGNMENT AND SUBLETTING........... 11
21 INSOLVENCY OF TENANT................ 11
22 BREACH BY TENANT.................... 12
23 ATTORNEYS' FEES/COLLECTION CHARGES.. 13
24 CONDEMNATION...................................... 13
25 NOTICES........................................... 13
26 WAIVER............................................ 14
27 EFFECT OF HOLDING OVER............................ 14
28 SUBORDINATION..................................... 14
29 ESTOPPEL CERTIFICATE.............................. 15
30 PARKING........................................... 15
31 MORTGAGEE PROTECTION.............................. 15
32 PROTECTIVE COVENANTS.............................. 16
33 GOVERNMENTAL REGULATIONS.......................... 16
34 RELOCATION........................................ 16
35 BROKERAGE COMMISSIONS............................. 16
MISCELLANEOUS PROVISIONS.............................. 17
EXHIBITS:
EXHIBIT "A": Site Plan
EXHIBIT "B": Floor Plan of the Leased Premises
EXHIBIT "C": Tenant's Acceptance of Premises
EXHIBIT "D": Subordination, Non-disturbance and
Attornment Agreement
EXHIBIT "E": Special Stipulations
EXHIBIT "F": Guaranty
STATE OF GEORGIA
GWINNETT COUNTY
This Lease Agreement is made this _____ day of April, 1997, by and between
WEEKS REALTY, L.P., a Georgia limited partnership, hereinafter referred to as
"Landlord", and BIO-SHIELD TECHNOLOGIES, INC., a Georgia corporation,
hereinafter referred to as "Tenant".
LEASED PREMISES
1.01 Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, the property hereinafter referred to as the LEASED PREMISES, described
as approximately 6,885 rentable square feet of office/warehouse at 0000
Xxxxxxxxxxxxx, Xxxxx X-000, Xxxxxxxx, Xxxxxxx 00000, Xxxxxxxx Xxxxxx, Building
____, in _______________________, as shown on the plan attached hereto as
Exhibit "A" and by reference incorporated herein. The building in which the
Leased Premises are located is herein referred to as the "Building"; and the
real property on which the building is situated is herein referred to as the
"Land".
TERM
2.01 TO HAVE AND TO HOLD said Leased Premises for a term of Three (3)
years, commencing on May 1, 1997, and continuing until midnight on April 30,
2000.
RENTAL
3.01 As rental for the Leased Premises, Xxxxxx agrees to pay to Landlord,
without offset or abatement, the sum of Forty-eight Thousand One Hundred Ninety-
five and 00/100 Dollars ($48,195.00) per year, payable in monthly installments
each in the amount of Four Thousand Sixteen and 25/100 ($4,016.25) Dollars on or
before the first day of each calendar month beginning on May 1, 1997 and
thereafter for the remainder of the term, together with any other additional
rental as hereinafter set forth. Tenant shall pay interest at a rate of twelve
percent (12%) per annum on all late payments of rent. If the Lease shall
commence on any date other than the first day of a calendar month, or end on any
date, other than the last day of a calendar month, rent for such month shall be
prorated. Tenant has deposited with Landlord, upon delivery of this Lease
Agreement, an amount equal to _____________________________________ ($______)
Dollars, half of which, or ________________________________ ($_______) Dollars,
is to be applied as first month's rental, the other half, or
_____________________ ($__________) Dollars, shall be held as a refundable
security deposit. Landlord may apply all or any part of the security deposit to
cure any default by Tenant hereunder and Tenant shall promptly restore to the
security deposit all amounts so applied upon invoice therefor. If Tenant shall
fully perform each provision of this Lease, any portion of the security deposit
which has not been appropriated by Landlord in accordance with the provisions
hereof shall be returned to Tenant, without interest, within thirty (30) days
after the expiration of the term of this Lease.
3.02 The rental provided in paragraph 3.01 "Rental" above, includes the
construction of tenant improvements on the basis set forth in the plans and
specifications attached, or to be attached, hereto in Exhibit "B".
3.03 In addition to the base rental, Xxxxxx agrees to pay Landlord as
additional rental, its pro rata share of the amounts described in subparagraphs
(a) and (b) below. Each year during the term hereof, Landlord shall give Tenant
written notice of its estimate of the amount of common area maintenance charges
and common area utility charges (collectively "Charges") for the Leased Premises
for the calendar year. Tenant shall, thereafter, during that calendar year, pay
to Landlord one-twelfth (1/12) of the amount set forth in said statement at such
time as its monthly installments of base rental hereunder are due and payable.
At such time as Landlord is able to determine the actual Charges for such
calendar year, Landlord shall deliver to Tenant a statement thereof and in the
event the estimated Charges differ from the actual Charges, any adjustment
necessary shall be made to additional rental payments next coming due under this
paragraph.
(a) Landlord agrees to maintain those areas around the Building and in the
Project, including parking areas, planted areas, signs and landscaped areas
which are from time to time designated by Landlord. Xxxxxx agrees to pay to
Landlord as additional rental its pro rata share of all ground maintenance
charges and other common area charges and expenses for the Building and the Land
("CAM Charges"). The term "grounds maintenance" shall include, without
limitation, all landscaping, planting, lawn and grounds care, all repairs and
maintenance to the grounds, signs and other common areas around the Building and
in the Project and to all sidewalks, driveways, loading areas and parking areas.
CAM Charges shall not include items of a capital nature.
(b) In the event any utilities furnished to the Building or the Leased
Premises are not separately metered, Tenant shall pay to Landlord, as additional
rental, Tenant's pro rata share of the gas, water, electricity, fuel, irrigation
costs, light and heat, garbage collection services and for all other sanitary
services rendered to the Leased Premises used by Tenant. Tenant's prorated
amount shall be determined on the basis of the size of the Leased Premises,
unless Landlord determines that Tenant's use of the Leased Premises justifies a
disproportionate allocation of utility costs to Tenant.
3.04 Xxxxxx agrees to pay as additional rent to Landlord, upon demand, its
pro rata share of any utility
surcharges, or any other costs levied, assessed or imposed by, or at the
direction of, or resulting from statutes or regulations, or interpretations
thereof, promulgated by any Federal, State, Municipal or local governmental
authorities in connection with the use or occupancy of the Leased Premises.
DELAY IN DELIVERY OF POSSESSION
4.01 If Landlord, for any reason whatsoever, cannot deliver possession of
the Leased Premises to Tenant at the commencement of the term of this Lease,
this Lease shall not be void or voidable, nor shall Landlord be liable to Tenant
for any loss or damage resulting therefrom, but in that event there shall be a
proportionate reduction of rent covering the period between the commencement of
the term and the time when Landlord can deliver possession. If delay is longer
than three (3) months, Landlord will provide Tenant such space (not exceeding in
area the Leased Premises) as Landlord may have available, until the Leased
Premises can be completed, at no charge to Tenant. The term of this Lease shall
be extended by such delay.
USE OF LEASED PREMISES
5.01 The Leased Premises may be used and occupied only for general
manufacturing and assembly, testing, warehousing and distribution, showroom and
offices and for no other purpose or purposes, without Landlord's prior written
consent. Tenant shall promptly comply at its sole expense with all laws,
ordinances, orders, and regulations affecting the Leased Premises and their
cleanliness, safety, occupation and use. Tenant shall not do or permit anything
to be done in or about the Leased Premises that will in any way increase the
fire insurance upon the building. Tenant will not perform any act or carry on
any practices that may injure the building or be a nuisance or menace to tenants
of adjoining premises. Tenant shall not cause, maintain or permit any outside
storage on or about the Leased Premises, including pallets or other refuse. The
rear loading areas of the Tenant's unit must be clean and unobstructed. On or
before the Commencement Date, Tenant shall take possession of, and, thereafter,
continuously occupy the Leased Premises during the term of this Lease, and
operate thereon the normal business operations of Tenant.
5.02 Tenant shall, at Tenant's sole cost and expense, comply fully with
all environmental laws and regulations, and all other legal requirements,
applicable to Tenant's operations at, on or within, or to Tenant's use and
occupancy of, the Leased Premises. Tenant shall not (either with or without
negligence) cause or permit the escape, disposal or release of any biologically
or chemically active or other hazardous substances, or materials. Tenant shall
not allow the storage or use of such substances or materials in any manner not
sanctioned by law or by the highest standards prevailing in the industry for the
storage and use of such substances or materials, nor allow to be brought into
the Project any such materials or substances except to use in the ordinary
course of Tenant's business, and then only after written notice is given to
Landlord of the identity of such substances or materials. Without limitation,
hazardous substances and materials shall include those described in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. Section 9601 et seq., the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. Section 6901 et seq., any applicable state or local
laws and the regulations adopted under these acts. If any lender or
governmental agency shall ever require testing to ascertain whether or not there
has been any release of hazardous materials, then the reasonable costs thereof
shall be reimbursed by Tenant to Landlord upon demand as additional charges if
such requirement applies to the Leased Premises. In addition, Xxxxxx shall
execute affidavits, representations and the like from time to time at Landlord's
request concerning Xxxxxx's best knowledge and belief regarding the presence of
hazardous substances or materials on the Leased Premises. In all events, Tenant
shall indemnify Landlord in the manner elsewhere provided in this lease from any
release of hazardous materials on the Leased Premises occurring while Tenant is
in possession, or elsewhere if caused by Tenant or persons acting under Tenant.
The within covenants shall survive the expiration or earlier termination of the
lease term.
UTILITIES
6.01 Landlord shall not be liable in the event of any interruption in the
supply of any utilities. Tenant agrees that it will not install any equipment
which will exceed or overload the capacity of any utility facilities and that if
any equipment installed by Tenant shall require additional utility facilities,
the same shall be installed by Tenant at Tenant's expense in accordance with
plans and specifications approved in writing by Landlord. Tenant shall be
solely responsible for and shall pay all charges for use or consumption of
sanitary sewer, water, gas, electricity and any other utility services. In the
event Landlord determines that it is advisable to separately meter any utility
services provided to the Leased Premises, Landlord shall have the right to
install a sub-meter and bill Tenant for the actual cost thereof, which shall be
paid to Landlord within fifteen (15) days following billing.
ACCEPTANCE OF LEASED PREMISES
7.01 By entry hereunder, Xxxxxx acknowledges that it has examined the
Leased Premises and accepts the same as being in the condition called for by
this Lease, and as suited for the uses intended by Xxxxxx. Upon delivery of
possession of the Leased Premises to Tenant, Xxxxxx agrees to execute and
deliver to Landlord a Xxxxxx's Acceptance of Premises, in the form attached
hereto as Exhibit "C".
ALTERATIONS, MECHANICS' LIENS
8.01 Alterations may not be made to the Leased Premises without prior
written consent of Landlord, and
any alterations of the Leased Premises excepting movable furniture and trade
fixtures shall at Landlord's option become part of the realty and belong to
Landlord.
8.02 Should Tenant desire to alter the Leased Premises and Landlord gives
written consent to such alterations, at Xxxxxxxx's option, Tenant shall contract
with a contractor approved by Landlord for the construction of such alterations.
8.03 Notwithstanding anything in paragraph 8.02 above, Tenant may, upon
written consent of Landlord, install trade fixtures, machinery or other trade
equipment in conformance with all applicable laws, statutes, ordinances, rules,
regulations, and the same may be removed upon the termination of this Lease
provided Tenant shall not be in default under any of the terms and conditions of
this Lease, and the Leased Premises are not damaged by such removal. Tenant
shall return the Leased Premises on the termination of this Lease in the same
condition as when rented to Tenant, reasonable wear and tear only excepted.
Tenant shall keep the Leased Premises, the building and property in which the
Leased Premises are situated free from any liens arising out of any work
performed for, materials furnished to, or obligations incurred by Tenant. All
such work provided for above, shall be done at such times and in such manner as
Landlord may from time to time designate. Tenant shall give Landlord written
notice five (5) days prior to employing any laborer or contractor to perform
work resulting in an alteration of the Leased Premises so that Landlord may post
a notice of non-responsibility.
QUIET CONDUCT/QUIET ENJOYMENT
9.01 Tenant shall not commit, or suffer any waste upon the Leased
Premises, or any nuisance, or other act or thing which may disturb the quiet
enjoyment of any other tenant in the Building or any building in the project in
which the Leased Premises are located.
9.02 So long as Tenant is not in default in the payment of rent, or other
charges or in the performance of any of the other terms, covenants, or
conditions of the Lease, Tenant shall not be disturbed by Landlord or anyone
claiming by, through or under Landlord in Tenant's possession, enjoyment, use
and occupancy of the Leased Premises during the original or any renewal term of
the Lease or any extension or modification thereof.
FIRE INSURANCE, HAZARDS
10.01 No use shall be made or permitted to be made of the Leased Premises,
nor acts done which might increase the existing rate of insurance upon the
building or cause the cancellation of any insurance policy covering the
building, or any part thereof, nor shall Tenant sell, or permit to be kept, used
or sold, in or about the Leased Premises, any article which may be prohibited by
the Standard form of fire insurance policies. Tenant shall, at its sole cost
and expense, comply with any and all requirements pertaining to the Leased
Premises, of any insurance organization or company, necessary for the
maintenance of reasonable fire and public liability insurance, covering the
Leased Premises, building and appurtenances.
10.02 Tenant shall maintain in full force and effect on all of its
inventory, fixtures and equipment in the Leased Premises a policy or policies of
fire and extended coverage insurance with standard coverage endorsement to the
extent of at least eighty percent (80%) of their insurable value. During the
term of this Lease the proceeds from any such policy or policies of insurance
shall be used for the repair or replacement of the fixtures, and Landlord will
sign all documents necessary or proper in connection with the settlement of any
claim or loss by Tenant. Landlord will not carry insurance on Tenant's
possessions. Tenant shall furnish Landlord with a certificate of such policy
within thirty (30) days of the commencement of this Lease, and whenever
required, shall satisfy Landlord that such policy is in full force and effect.
LIABILITY INSURANCE
11.01 Tenant, at its own expense, shall provide and keep in force with
companies acceptable to Landlord public liability insurance for the benefit of
Landlord and Tenant jointly against liability for bodily injury and property
damage in the amount of not less than Three Million Dollars ($3,000,000.00) in
respect to injuries to or death of more than one person in any one occurrence,
in the amount of not less than One Million Dollars ($1,000,000.00) in respect to
injuries to or death of any one person, and in the amount of not less than One
Million Dollars ($1,000,000.00) per occurrence in respect to damage to property,
such limits to be for any greater amounts as may be reasonably indicated by
circumstances from time to time existing. Tenant shall furnish Landlord with a
certificate of such policy within thirty (30) days of the commencement date of
this Lease and whenever required shall satisfy Landlord that such policy is in
full force and effect. Such policy shall name Landlord as an additional insured
and shall be primary and non-contributing with any insurance carried by
Landlord. The policy shall contain a contractual liability endorsement. The
policy shall further provide that it shall not be canceled or altered without
twenty (20) days prior written notice to Landlord.
INDEMNIFICATION
12.01 Tenant shall indemnify and hold harmless Landlord against and from
any and all claims arising from Tenant's use of the Leased Premises (other than
those arising solely from negligence of Landlord or its agents or employees), or
the conduct of its business or from any activity, work, or thing done, permitted
or suffered by the Tenant in or about the Leased Premises, and shall further
indemnify and hold harmless Landlord against and from any and all claims arising
from any breach or default in the performance of any obligation on Xxxxxx's part
to be
performed under the terms of this Lease, or arising from any act, neglect,
fault or omission of the Tenant, or of its agents or employees, and from and
against all costs, attorney's fees, expenses and liabilities incurred in or
about such claim or any action or proceeding brought relative thereto and in
case any action or proceeding be brought against Landlord by reason of any
such claim, Tenant upon notice from Landlord shall defend the same at Tenant's
expense by counsel, chosen by Xxxxxx and who is reasonably acceptable to
Landlord. Tenant, as a material part of the consideration to Landlord, hereby
assumes all risk of damage to property or injury to persons in or about the
Leased Premises from any cause whatsoever except that which is caused by the
failure of Landlord to observe any of the terms and conditions of this Lease
where such failure has persisted for an unreasonable period of time after
written notice of such failure, and Tenant hereby waives all claims in respect
thereof against Landlord.
12.02 Landlord shall indemnify Tenant and hold Tenant harmless against and
from all claims arising from the negligence or willful misconduct of Landlord,
its agents, employees or contractors, with respect to the Leased Premises that
is not insured against or required to be insured against under the insurance
policies Tenant is required to maintain under this Lease.
12.03 The obligations of Landlord and Tenant under this paragraph arising
by reason of any occurrence taking place during the term of this Lease shall
survive the termination or expiration of this Lease.
WAIVER OF CLAIMS
13.01 Tenant, as a material part of the consideration to be rendered to
Landlord, hereby waives all claims against Landlord for damages to goods, wares
and merchandise in, upon or about the Leased Premises and for injury to Tenant,
its agents, employees, invitees, or third persons in or about the Leased
Premises from any cause arising at any time.
REPAIRS
14.01 Tenant shall, at its sole cost, keep and maintain the Leased
Premises and appurtenances and every part thereof (excepting exterior walls and
roofs which Landlord agrees to repair) including by way of illustration and not
by way of limitation all windows, and skylights, doors, any store front and the
interior of the Leased Premises, including all plumbing, heating, air
conditioning, sewer, electrical systems and all fixtures and all other similar
equipment serving the Leased Premises in good and sanitary order, condition, and
repair. Tenant shall be responsible for all pest control within the Leased
Premises, including, but not limited to the eradication of any ants or termites
should infestation be observed during the term of the Lease. Tenant shall, at
its sole cost, keep and maintain all utilities, fixtures and mechanical
equipment used by Tenant in good order, condition, and repair. All windows
shall be washed and cleaned as often as necessary to keep them clean and free
from smudges and stains. In the event Tenant fails to maintain the Leased
Premises as required herein or fails to commence repairs (requested by Landlord
in writing) within thirty (30) days after such request, or fails diligently to
proceed thereafter to complete such repairs, Landlord shall have the right in
order to preserve the Leased Premises or portion thereof, and/or the appearance
thereof, to make such repairs or have a contractor make such repairs and charge
Tenant for the cost thereof as additional rent, together with interest at the
rate of twelve percent (12%) per annum from the date of making such payments.
14.02 Landlord agrees to keep in good repair the roof, foundations, and
exterior walls of the Leased Premises except repairs rendered necessary by the
negligence of Tenant, its agents, employees or invitees. Landlord gives to
Tenant exclusive control of Leased Premises and shall be under no obligations to
inspect said Leased Premises. Tenant shall promptly report in writing to
Landlord any defective condition known to it which Landlord is required to
repair, and Landlord shall move with reasonable diligence to repair such item.
Failure to report such defects shall make Tenant responsible to Landlord for any
liability incurred by Landlord by reason of such defects.
14.03 Tenant shall obtain upon occupancy and keep current during the lease
term a service maintenance contract on the heating, ventilation and air
conditioning (HVAC) equipment serving the Leased Premises. The contract shall
be between Tenant and a dealer-authorized company acceptable to Landlord, and
shall at a minimum provide for an equipment check and tune-up service each
spring and fall, and filter and lubrication service every three months. A copy
of said contract shall be provided to Landlord, as well as any modification,
extension, renewal or replacement thereof.
SIGNS, LANDSCAPING
15.01 Landlord shall have the right to control landscaping and Tenant
shall make no alterations or additions to the landscaping. Landlord shall have
the right to approve the placing of signs and the size and quality of the same.
Tenant shall place no exterior signs on the Leased Premises without the prior
written consent of Landlord. Any signs not in conformity with the Lease may be
immediately removed by Landlord.
ENTRY BY LANDLORD
16.01 Tenant shall permit Landlord and Landlord's agents to enter the
Leased Premises at all reasonable times for the purpose of inspecting the same
or for the purpose of maintaining the building, or for the purpose of making
repairs, alterations, or additions to any portion of the building, including the
erection and maintenance of such scaffolding, canopies, fences and props as may
be required, or for the purpose of posting notices of
non-responsibility for alterations, additions, or repairs, or for the purpose
of showing the Leased Premises to prospective tenants, or placing upon the
building any usual or ordinary "for sale" signs, without any rebate of rent
and without any liability to Tenant for any loss of occupation or quiet
enjoyment of the Leased Premises thereby occasioned; and shall permit Landlord
at any time within six (6) months prior to the expiration of this Lease, to
place upon the Leased Premises any usual or ordinary "to let" or "to lease"
signs. For each of the aforesaid purposes, Landlord shall at all times have
and retain a key with which to unlock all of the exterior doors about the
Leased Premises.
TAXES AND INSURANCE INCREASE
17.01 Tenant shall pay before delinquency any and all taxes, assessments,
license fees, and public charges levied, assessed, or imposed and which become
payable during the Lease upon Tenant's fixtures, furniture, appliances and
personal property installed or located in the Leased Premises.
17.02 Tenant shall pay, as additional rental during the term of this Lease
and any extension or renewal thereof, the amount by which all taxes (as herein
defined) for each tax year exceeds all taxes for 199__. In the event the Leased
Premises are less than the area of the entire property assessed for such taxes
for any such tax year, then the tax for any such year applicable to the Leased
Premises shall be determined by proration on the basis that the rentable floor
area of the Leased Premises bears to the rentable floor area of the entire
property assessed. The term "taxes" shall include all ad valorem taxes, special
assessments, and governmental charges assessed against the Building or the Land;
and such term shall also include any reasonable expenses, including fees and
disbursements of attorneys, tax consultants, arbitrators, appraisers, experts
and other witnesses, incurred by Landlord in contesting any taxes or the
assessed valuation of all or any part of the Building or the Land. If the final
year of the lease term fails to coincide with the tax year, then any excess for
the tax year during which the term ends shall be reduced by the pro rata part of
such tax year beyond the lease term. The agent's commission shall not apply to
any such additional rental resulting from the provisions of this paragraph.
17.03 Xxxxxx agrees to pay the amount for all taxes levied upon or
measured by the rent payable hereunder, whether as a so-called sales tax,
transaction privilege tax, excise tax, or otherwise (but no income taxes of
Landlord shall be payable by Xxxxxx). Such taxes shall be due and payable at
the same time as and in addition to each payment of rent.
17.04 Commencing in the year 199__ and during each remaining year of the
lease term or any extension or renewal thereof, in the event that the insurance
premiums payable by the Landlord for insurance coverage on the property are
increased, whether such increase is due to an increase in the valuation of the
building, or in the applicable rate of insurance, then Tenant agrees to pay
Landlord as additional rental, Xxxxxx's pro rata share of the increase in said
insurance premiums over the base amount paid in the year 199__. The term
"insurance" shall include all fire and extended coverage insurance on the
Building and all liability insurance coverage on the common areas of the
Building, and the grounds, sidewalks, driveways and parking areas on the Land,
together with such other insurance coverages, including, but not limited to,
rent interruption insurance, as are from time to time obtained by Landlord.
Tenant's pro rata share shall be based on the square footage of the Leased
Premises leased to Tenant (as specified in paragraph 1.01 hereof) compared to
the total square footage of leasable space in the entire building. If during
the final year of the Lease, or any extension or renewal thereof, the term does
not coincide with the year upon which the insurance rate is determined, the
increase in premiums for the portion of that year shall be prorated according to
the number of months during which Tenant is in possession of the Leased
Premises.
17.05 On or about January 1 of each calendar year during the term of this
Lease, Landlord shall provide Tenant with a good faith estimate of the amount by
which taxes and insurance will exceed the base amounts during such calendar
year. Tenant shall thereafter pay one-twelfth (1/12) of its pro rata share of
such increase at such time as its monthly installments of base rental hereunder
are due and payable. When the actual bills have been received by Landlord,
Landlord shall notify Tenant of the actual taxes and insurance for such calendar
year. If Tenant has paid more than it would have paid had the actual bills been
known, Landlord shall credit such excess against the next additional rent
payments coming due; if Tenant has not paid enough, Tenant shall pay the
remainder to Landlord within fifteen (15) days following receipt of a statement
from Landlord.
17.06 The provisions of paragraphs 17.01, 17.02, 17.03, 17.04 and 17.05
hereof shall survive the expiration or earlier termination of this Lease.
ABANDONMENT
18.01 Tenant shall not vacate nor abandon the Leased Premises at any time
during the term of this Lease; and if Tenant shall abandon, vacate or surrender
the Leased Premises, or be dispossessed by process of law, or otherwise, any
personal property belonging to Tenant and left on the Leased Premises shall, at
the option of the Landlord, be deemed abandoned and be and become the property
of Landlord.
DESTRUCTION
19.01 If the Leased Premises or any portion thereof are destroyed by
storm, fire, lightning, earthquake or other casualty, Tenant shall immediately
notify Landlord. In the event the Leased Premises cannot, in Landlord's
judgment, be restored within one hundred eighty (180) days of the date of such
damage or destruction, this Lease
shall terminate as of the date of such destruction, and all rent and other
sums payable by Tenant hereunder shall be accounted for as between Landlord
and Xxxxxx as of that date. Landlord shall notify Tenant within thirty (30)
days of the date of the damage or destruction whether the Leased Premises can
be restored within one hundred eighty (180) days. If this Lease is not
terminated as provided in this Paragraph, Landlord shall, to the extent
insurance proceeds payable on account of such damage or destruction are
available to Landlord (with the excess proceeds belonging to Landlord), within
a reasonable time, repair, restore, rebuild, reconstruct or replace the
damaged or destroyed portion of the Leased Premises to a condition
substantially similar to the condition which existed prior to the damage or
destruction. Provided, however, Landlord shall only be required to repair,
restore, rebuild, reconstruct and replace the Landlord's Work shown on Exhibit
"B", and Tenant shall, at its sole cost and expense, upon completion of the
Landlord's Work, repair, restore, rebuild, reconstruct and replace, as
required, any and all improvements installed in the Leased Premises by Tenant
and all trade fixtures, personal property, inventory, signs and other contents
in the Leased Premises, and all other repairs not specifically required of
Landlord hereunder, in a manner and to at least the condition existing prior
to the damage. Tenant's obligation to pay Base Rent shall xxxxx until Landlord
has repaired, restored, rebuilt, reconstructed or replaced the Leased
Premises, as required herein, in proportion to the part of the Leased Premises
which are unusable by Tenant. If the damage or destruction is due to the act,
neglect, fault or omission of Tenant, there shall be no rent abatement except
to the extent of rent loss insurance. In the event of any dispute between
Xxxxxxxx and Tenant relative to the provisions of this paragraph, they may
each select an arbitrator, the two arbitrators so selected shall select a
third arbitrator and the three arbitrators so selected shall hear and
determine the controversy and their decision thereon shall be final and
binding on both Landlord and Tenant who shall bear the cost of such
arbitration equally between them. Landlord shall not be required to repair any
property installed in the Leased Premises by Tenant. Tenant waives any right
under applicable laws inconsistent with the terms of this paragraph and in the
event of a destruction agrees to accept any offer by Landlord to provide
Tenant with comparable space within the project in which the Leased Premises
are located on the same terms as this Lease. Notwithstanding the provisions of
this paragraph, if any such damage or destruction occurs within the final two
(2) years of the term hereof, then Landlord, in its sole discretion, may,
without regard to the aforesaid 180-day period, terminate this Lease by
written notice to Tenant.
ASSIGNMENT AND SUBLETTING
20.01 Landlord shall have the right to transfer and assign, in whole or in
part its rights and obligations in the building and property that are the
subject of this Lease. Tenant shall not assign this Lease or sublet all or any
part of the Leased Premises without the prior written consent of the Landlord.
In the event of any assignment or subletting, Tenant shall nevertheless at all
times, remain fully responsible and liable for the payment of the rent and for
compliance with all of its other obligations under the terms, provisions and
covenants of this Lease. If all or any part of the Leased Premises are then
assigned or sublet, Landlord, in addition to any other remedies provided by this
Lease or provided by law, may at its option, collect directly from the assignee
or subtenant all rents becoming due to Tenant by reason of the assignment or
sublease, and Landlord shall have a security interest in all properties on the
Leased Premises to secure payment of such sums. Any collection directly by
Landlord from the assignee or subtenant shall not be construed to constitute a
novation or a release of Tenant from the further performance of its obligations
under this Lease. In the event that Tenant sublets the Leased Premises or any
part thereof, or assigns this Lease and at any time receives rent and/or other
consideration which exceeds that which Tenant would at that time be obligated to
pay to Landlord, Tenant shall pay to Landlord 100% of the gross excess in such
rent as such rent is received by Tenant and 100% of any other consideration
received by Tenant from such subtenant in connection with such sublease or, in
the case of any assignment of this Lease by Xxxxxx, Landlord shall receive 100%
of any consideration paid to Tenant by such assignee in connection with such
assignment. In addition, should Xxxxxxxx agree to an assignment or sublease
agreement, Tenant will pay to Landlord on demand the sum of $500.00 to partially
reimburse Landlord for its costs, including reasonable attorneys' fees, incurred
in connection with processing such assignment or subletting request.
INSOLVENCY OF TENANT
21.01 Either (a) the appointment of a trustee to take possession of all or
substantially all of the assets of Tenant, or (b) a general assignment by Tenant
for the benefit of creditors, or (c) any action taken or suffered by Tenant
under any insolvency or bankruptcy act shall, if any such appointments,
assignments or action continues for a period of thirty (30) days, constitute a
breach of this Lease by Xxxxxx, and Landlord may at its election without notice,
terminate this Lease and in that event be entitled to immediate possession of
the Leased Premises and damages as provided below.
BREACH BY TENANT
22.01 In the event of a default, Landlord in addition to any and all other
rights or remedies that it may have hereunder, at law or in equity shall have
the right to either terminate this Lease or from time to time, without
terminating this Lease relet the Leased Premises or any part thereof for the
account and in the name of Tenant or otherwise, for any such term or terms and
conditions as Landlord in its sole discretion may deem advisable with the right
to make reasonable alterations and repairs to the Leased Premises. Tenant shall
pay to Landlord, as soon as ascertained, the costs and expenses incurred by
Landlord in such reletting or in making such reasonable alterations and repairs.
Should such rentals received from time to time from such reletting during any
month be less than that agreed to be paid during that month by Tenant hereunder,
the Tenant shall pay such deficiency to Landlord. Such deficiency shall be
calculated and paid monthly.
22.02 No such reletting of the Leased Premises by Landlord shall be
construed as an election on its part to terminate this Lease unless a notice of
such intention be given to Tenant or unless the termination thereof be decreed
by a court of competent jurisdiction. Notwithstanding any such reletting
without termination, Landlord may immediately or at any time thereafter
terminate this Lease, and this Lease shall be deemed to have been terminated
upon receipt by Tenant of notice of such termination; upon such termination
Landlord shall recover from Tenant all damages that Landlord may suffer by
reason of such termination including, without limitation, all arrearages in
rentals, costs, charges, additional rentals, and reimbursements, the cost
(including court costs and attorneys' fees actually incurred) of recovering
possession of the Leased Premises, the actual or estimated (as reasonably
estimated by Landlord) cost of any alteration of or repair to the Leased
Premises which is necessary or proper to prepare the same for reletting and, in
addition thereto, Landlord shall have and recover from Tenant the difference
between the present value (discounted at a rate per annum equal to the discount
rate of the Federal Reserve Bank of Atlanta at the time the Event of Default
occurs) of the rental to be paid by Tenant for the remainder of the lease term,
and the present value (discounted at the same rate) of the rental for the Leased
Premises for the remainder of the lease term, taking into account the cost, time
and other factors necessary to relet the Leased Premises; provided, however that
such payment shall not constitute a penalty or forfeiture, but shall constitute
full liquidated damages due to Landlord as a result of Tenant's default.
Landlord and Xxxxxx acknowledge that Xxxxxxxx's actual damages in the event of a
default by Tenant under this Lease will be difficult to ascertain, and that the
liquidated damages provided above represent the parties' best estimate of such
damages. The parties expressly acknowledge that the foregoing liquidated
damages are intended not as a penalty, but as full liquidated damages, as
permitted by Section 13-6-7 of the Official Code of Ga. Annotated.
ATTORNEY'S FEES
23.01 If Landlord and Tenant litigate any provision of this Lease or the
subject matter of this Lease, the unsuccessful litigant will pay to the
successful litigant all costs and expenses, including reasonable attorneys' fees
and court costs, incurred by the successful litigant at trial and on any appeal.
If, without fault, either Landlord or Tenant is made a party to any litigation
instituted by or against the other, the other will indemnify the faultless one
against all loss, liability, and expense, including reasonable attorneys' fees
and court costs, incurred by it in connection with such litigation.
CONDEMNATION
24.01 If, at any time during the term of this Lease, title to the entire
Leased Premises should become vested in a public or quasi-public authority by
virtue of the exercise of expropriation, appropriation, condemnation or other
power in the nature of eminent domain, or by voluntary transfer from the owner
of the Leased Premises under threat of such a taking then this Lease shall
terminate as of the time of such vesting of title, after which neither party
shall be further obligated to the other except for occurrence antedating such
taking. The same results shall follow if less than the entire Leased Premises
be thus taken, or transferred in lieu of such a taking, but to such extent that
it would be legally and commercially impossible for Tenant to occupy the portion
of the Leased Premises remaining, and impossible for Tenant to reasonably
conduct his trade or business therein.
24.02 Should there be such a partial taking or transfer in lieu thereof,
but not to such an extent as to make such continued occupancy and operation by
Tenant an impossibility, then this Lease shall continue on all of its same terms
and conditions subject only to an equitable reduction in rent proportionate to
such taking.
24.03 In the event of any such taking or transfer, whether of the entire
Leased Premises, or a portion thereof, it is expressly agreed and understood
that all sums awarded, allowed or received in connection therewith shall belong
to Landlord, and any rights otherwise vested in Tenant are hereby assigned to
Landlord, and Tenant shall have no interest in or claim to any such sums or any
portion thereof, whether the same be for the taking of the property or for
damages, or otherwise. Nothing herein shall be construed, however, to preclude
Tenant from prosecuting any claim directly against the condemning authority for
loss of business, moving expenses, damage to, and cost of, trade fixtures,
furniture and other personal property belonging to Xxxxxx; provided, however,
that Tenant shall make no claim which shall diminish or adversely affect any
award claimed or received by Landlord.
NOTICES
25.01 All notices, statements, demands, requests, consents, approvals,
authorization, offers, agreements, appointments, or designations under this
Lease by either party to the other shall be in writing and shall be sufficiently
given and served upon the other party, (i) by depositing same in the United
States mail, addressed to the party to be notified, postage prepaid and
registered or certified with return receipt requested; (ii) by recognized
overnight, third party prepaid courier service (such as Federal Express),
requiring signed receipt; (iii) by delivering the same in person to such party;
or (iv) by prepaid telegram, telecopy or telex with delivery of an original copy
of any such notice delivered pursuant to (ii) or (iii) above to be received no
later than the next business day. Notice personally delivered or sent by
courier service, telegram, telecopy or telex shall be effective upon receipt.
Any notice mailed in the foregoing manner shall be effective three (3) business
days after its deposit in the United States mail. Either party may change its
address for notices by giving notice to the other as provided above. For
purposes of notice, the addresses of the parties shall be as follows:
(a) To Tenant at the Leased Premises;
(b) To Landlord, addressed to Landlord at 0000 Xxxx Xxxxx, Xxxxxxxx,
Xxxxxxx 00000, with a copy to such other place as Landlord may from
time to time designate by notice to Tenant.
WAIVER
26.01 The waiver by Landlord of any breach of any term, covenant, or
condition herein contained shall not be deemed to be a waiver of such term,
covenant, or condition or any subsequent breach of the same or any other term,
covenant, or condition herein contained. The subsequent acceptance of rent
hereunder by Landlord shall not be deemed to be a waiver of any preceding breach
by Tenant of any term, covenant, or condition of this Lease, other than the
failure of Tenant to pay the particular rental so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
rent.
EFFECT OF HOLDING OVER
27.01 If Tenant should remain in possession of the Leased Premises after
the expiration of the lease term and without executing a new lease, then such
holding over shall be construed as a tenancy from month to month, subject to all
the conditions, provisions, and obligations of this Lease insofar as the same
are applicable to a month to month tenancy, except that the rent payable
pursuant to subparagraph 3.01 hereof shall be 150% of the rent payable pursuant
to subparagraph 3.01.
SUBORDINATION
28.01 This Lease, at Landlord's option, shall be subordinate to any ground
lease, first priority mortgage, first priority deed of trust, or first priority
security deed now or hereafter placed upon the real property of which the Leased
Premises are a part and to any and all advances made on the security thereof and
to all renewals, modifications, consolidations, replacements and extensions
thereof.
28.02 Xxxxxx agrees to execute any documents required to effectuate such
subordination or to make this Lease prior to the lien of any such ground lease,
mortgage, deed of trust, or security deed, as the case may be, including
specifically a subordination, non-disturbance and attornment agreement in the
form hereto attached as Exhibit "D", and failing to do so within ten (10) days
after written demand, does hereby make, constitute and irrevocably appoint
Landlord as Tenant's attorney in fact and in Xxxxxx's name, place and stead, to
do so. If requested to do so, Xxxxxx agrees to attorn to any person or other
entity that acquires title to the real property encompassing the Leased
Premises, whether through judicial foreclosure, sale under power, or otherwise,
and to any assignee of such person or other entity.
ESTOPPEL CERTIFICATE
29.01 Upon ten (10) days notice from Landlord to Tenant, Tenant shall
deliver a certificate dated as of the first day of the calendar month in which
such notice is received, executed by an appropriate officer, partner or
individual, in the form as Landlord may require and stating but not limited to
the following: (i) the commencement date of this Lease; (ii) the space occupied
by Tenant hereunder; (iii) the expiration date hereof; (iv) a description of any
renewal or expansion options; (v) the amount of rental currently and actually
paid by Tenant under this Lease; (vi) the nature of any default or claimed
default hereunder by Landlord and (vii) that Tenant is not in default hereunder
nor has any event occurred which with the passage of time or the giving of
notice would become a default by Tenant hereunder.
PARKING
30.01 Tenant shall be entitled to park in common with other tenants of
Landlord. Xxxxxx agrees not to overburden the parking facilities and agrees to
cooperate with Landlord and other tenants in the use of parking facilities.
Landlord reserves the right in its absolute discretion to determine whether
parking facilities are becoming crowded and, in such event, to allocate parking
spaces among Tenant and other tenants. There will be no assigned parking unless
Landlord, in its sole discretion, may deem advisable. Xxxxxx agrees to park all
Tenant's trucks in the parking spaces provided at the rear of the building.
"Parking" as used herein means the use by Tenant's employees, its visitors,
invitees, and customers for the parking of motor vehicles for such periods of
time as are reasonably necessary in connection with use of and/or visits to the
Leased Premises. No vehicle may be repaired or serviced in the parking area and
any vehicle deemed abandoned by Landlord will be towed from the project and all
costs therein shall be borne by the Tenant. All driveways, ingress and egress,
and all parking spaces are for the joint use of all tenants. No area outside of
the Leased Premises shall be used by Tenant for storage without Landlord's prior
written permission. There shall be no parking permitted on any of the streets or
roadways located in _________________________.
MORTGAGEE PROTECTION
31.01 In the event of any default on the part of Landlord, Tenant will
give notice by registered or certified mail to any beneficiary of a deed or
trust or holder of a security deed or mortgage covering the Leased Premises
whose address shall have been furnished it, and shall offer such beneficiary or
holder a reasonable opportunity to cure the default, including time to obtain
possession of the Leased Premises by power of sale or a judicial foreclosure, if
such should prove necessary to effect a cure.
PROTECTIVE COVENANTS
32.01 This Lease is subject to the Protective Covenants of
_______________________, and to such rules and regulations as may hereafter be
adopted and promulgated. In addition, Xxxxxx shall comply with all covenants,
restrictions and other matters of record in the deed records of the county in
which the Leased Premises are located which affect or encumber the Leased
Premises, the Building or the Land.
RELOCATION
33.01 At Landlord's option, to be exercised by notice to Tenant specifying
the date of relocation, Landlord may designate any other space in the Project to
be occupied by Tenant in lieu of the Leased Premises, provided that said other
space is of substantially equal size and area and equivalent base rental per
square foot. Landlord shall bear the expense of Xxxxxx's move as well as the
expense of any renovation or alterations necessary to make the new space
substantially conform in layout and appointment with the original Leased
Premises.
BROKERAGE COMMISSIONS
34.01 Tenant's Agent and Xxxxxxxx's Agent (collectively, "Agent") shall
each be entitled to receive a commission in the amounts, and upon the terms and
conditions, contained in a commission agreement between Landlord and such
parties.
34.02 Tenant warrants and represents to Landlord that, other than Agent,
no other party is entitled, as a result of the actions of Tenant, to a
commission or other fee resulting from the execution of this Lease; and in the
event Tenant extends or renews this Lease, or expands the Leased Premises, and
Xxxxxx's Agent is entitled to a commission under the above-referenced commission
agreement, Tenant shall pay all commissions and fees payable to any party (other
than Xxxxxx's Agent) engaged by Xxxxxx to represent Tenant in connection
therewith. Landlord warrants and represents to Tenant that, except as set forth
above, no other party is entitled, as a result of the actions of Landlord, to a
commission or other fee resulting from the execution of this Lease. Landlord
and Xxxxxx agree to indemnify and hold each other harmless from any loss, cost,
damage or expense (including reasonable attorneys' fees) incurred by the
nonindemnifying party as a result of the untruth or incorrectness of the
foregoing warranty and representation, or failure to comply with the provisions
of this subparagraph.
34.03 Tenant's Agent is representing Tenant in connection with this Lease,
and is not representing Landlord. Landlord's Agent, or employees of Landlord or
its affiliates, are representing Landlord and are not representing Tenant.
34.04 The parties acknowledge that certain officers, directors,
shareholders, or partners of Landlord or its general partner(s), are licensed
real estate brokers and/or salesmen under the laws of the State of Georgia.
Tenant consents to such parties acting in such dual capacities.
MISCELLANEOUS PROVISIONS
A. Whenever the singular number is used in this Lease and when required by
the context, the same shall include the plural, and the masculine gender shall
include the feminine and neuter genders, and the word "person" shall include
corporation, firm or association. If there be more than one tenant, the
obligations imposed upon Tenant under this Lease shall be joint and several.
B. The headings or titles to paragraphs of this Lease are for convenience
only and shall have no effect upon the construction or interpretation of any
part of this Lease.
C. This instrument contains all of the agreements and conditions made
between the parties to this Lease and may not be modified orally or in any other
manner than by agreement in writing signed by all parties to this Lease.
D. Where the consent of a party is required, such consent will not be
unreasonably withheld.
E. This Lease shall create the relationship of Landlord and Tenant between
Landlord and Tenant; no estate shall pass out of Landlord; Xxxxxx has only a
usufruct, not subject to levy and/or sale and not assignable by Xxxxxx except as
provided in paragraph 20.01 hereof.
F. Except as otherwise expressly stated, each payment required to be made
by Tenant shall be in addition to and not in substitution for other payments to
be made by Tenant.
G. All covenants and agreements to be performed by Tenant under any of the
terms of this Lease shall be performed by Tenant at Tenant's sole cost and
expense and without any abatement of rent.
H. No payment by Tenant or receipt by Landlord of a lesser amount than any
installment or payment of rent due shall be deemed to be other than on account
of the amount due, and no endorsement or statement on any check or payment of
rent shall be deemed an accord and satisfaction. Landlord may accept such check
or payment without prejudice to Landlord's right to recover the balance of such
installment or payment of rent, or pursue any other remedies available to
Landlord.
I. Subject to paragraph 20, the terms and provisions of this Lease shall be
binding upon and inure to the benefit of the heirs, executors, administrators,
successors, and assigns of Landlord and Xxxxxx. In the event of any conveyance
by Landlord of its interest in and to the Leased Premises, the Building or the
Land, all obligations under this Lease of the conveying party shall cease and
Tenant shall thereafter look solely to the party to whom the Leased Premises
were conveyed for performance of all of Landlord's duties and obligations under
this Lease.
X. Xxxxxx acknowledges and agrees that Landlord shall not provide guards or
other security protection for the Leased Premises and that any and all security
protection shall be the sole responsibility of Tenant.
K. This Lease shall be governed by Georgia law.
L. Time is of the essence of each term and provision of this Lease.
M. Tenant shall not record this Lease or a memorandum thereof without the
written consent of Landlord. Upon the request of Landlord, Xxxxxx shall join in
the execution of a memorandum or so-called "short form" of this Lease for the
purpose of recordation. Said memorandum or short form of this Lease shall
describe the parties, the Leased Premises and the lease term, and shall
incorporate this Lease by reference.
N. Landlord's liability for performance of its obligations under the terms
of this Lease shall be limited to its interest in the Leased Premises.
O. It is a condition to Xxxxxxxx's obligations under this Lease that
Tenant, and Xxxxxx agrees to, obtain and deliver to Landlord a fully executed
guaranty in the form attached to this Lease as Exhibit "F", within five (5) days
following written demand from Landlord.
(SIGNATURES CONTAINED ON FOLLOWING PAGE)
IN WITNESS WHEREOF, the parties hereto who are individuals have set their
hands and seals, and the parties who are corporations have caused this
instrument to be duly executed by its proper officers and its corporate seal to
be affixed, as of the day and year first above written.
Signed, sealed and delivered LANDLORD:
as to Landlord, in the
presence of: WEEKS REALTY, L.P.,
a Georgia limited partnership
___________________________ By: Weeks GP Holdings, Inc.
a Georgia corporation,
its sole general partner
___________________________
Notary Public By:__________________________
Name:_______________________
Its:__________________________
Signed, sealed and delivered TENANT:
as to Tenant, in the presence
of:
___________________________ By:__________________________
Name:_______________________
Its:__________________________
___________________________
Notary Public
ATTEST:
By:__________________________
Name:_______________________
Its:__________________________
(Corporate Seal)
EXHIBIT "C"
ACCEPTANCE OF PREMISES
Lessee: __________________________________________________
Lessor: __________________________________________________
Date Lease Signed: ________________________________________
Term of Lease: _____________________________________________
Address of Leased Premises: Suite ______ containing approximately
________________ square feet, located at
_____________________________________________________
_____________________________________________________
Commencement Date: ________________________________________
Expiration Date: ________________________________________
The above described premises are accepted by Lessee as suitable for the purpose
for which they were let. The above described lease term commences and expires
on the dates set forth above. Lessee acknowledges that it has been received
from Lessor ________ number of keys to the leased premises. It is understood
that there is a punch list which will be completed after move-in and will be an
exhibit to the Tenant Estoppel.
LESSEE
_______________________________
(Type Name of Lessee)
WITNESS
By: ___________________________ ________________________
(Signature) (Signature)
_______________________________ ________________________
(Type Name and Title) (Company)
1
EXHIBIT "D"
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
-------------------------------------------------------
THIS AGREEMENT, made as of the ___ day of ____________, 1995, between
_________________________________________ with offices at
_______________________________________________ ("Tenant") and
____________________________________ (herein, together with its successors,
transferees and assigns, the "Mortgagee");
W I T N E S S E T H:
WHEREAS, Mortgagee is about to or has heretofore granted to
_____________________________, a Georgia limited partnership (the "owner") a
first mortgage loan, which loan is secured by a security deed (herein
"Mortgage") dated as of _____________, 199_ and duly recorded on ____________,
199_ in the land records of Gwinnett County, Georgia; and
WHEREAS, the Mortgage is to be a first and prior lien upon the Owner's fee
estate in the real property described in Exhibit "A" annexed hereto ("Mortgaged
Premises"); and
WHEREAS, Tenant is occupying a portion of the Mortgaged Premises under a
lease dated as of _______________, 199_ in which Owner is Landlord (the "Lease")
covering that portion of the Mortgaged Premises therein more particularly
described (the "Leased Premises"); and
WHEREAS, Tenant desires to be assured of its continued and undisturbed
occupancy of the Leased Premises should the Mortgage be foreclosed or the
Mortgaged Premises sold pursuant to any power of sale contained therein and
Mortgagee is agreeable thereto.
NOW, THEREFORE, in consideration of the mutual covenants contained in this
Agreement and in further consideration of the sum of ONE DOLLAR ($1.00) each to
the other in hand paid, the receipt whereof is hereby acknowledged, Tenant and
Mortgagee mutually covenant and agree as follows:
FIRST: The Lease and all of Tenant's rights, interest and estate therein
and thereunder are hereby made subject and subordinate to the lien of the
Mortgage and to any extensions, renewals, replacements, modifications, additions
or consolidations thereof and to all rights, title and interest of Mortgagee and
its successors and assigns therein and thereunder.
SECOND: In the event, however, proceedings shall ever be instituted by
Mortgagee to foreclose or liquidate the Mortgage, the Tenant's possession of its
leased portion of the Mortgaged Premises shall not be disturbed by the
foreclosure proceedings and the Mortgaged Premises shall be sold at any
foreclosure sale subject to Tenant's possession on condition that:
(a) there shall be, at the time of commencement of foreclosure
proceedings, as well as all subsequent times, no default by Xxxxxx in
the due and timely observance and performance of any covenant and
agreement in the Lease to be observed and performed by Xxxxxx; and
(b) the Tenant shall not have entered into any agreement modifying any
term, condition or agreement of the Mortgagee-approved Lease without
the prior written consent of Mortgagee.
1
THIRD: Tenant shall attorn to Mortgagee while Mortgagee is in possession
of the Mortgaged Premises, or to a Receiver appointed in any action or
proceeding to foreclose the Mortgage. In the event of the completion of
foreclosure proceedings and sale of the Mortgaged Premises or in the event the
Mortgagee should otherwise acquire possession of the Mortgaged Premises, the
Tenant will promptly upon demand attorn to the purchaser at the foreclosure sale
or to the Mortgagee, as the case may be, and will recognize such purchaser or
the Mortgagee as the Tenant's landlord. The Tenant agrees to execute and
deliver, at any time and from time to time, upon the request of the Mortgagee or
the purchaser at the foreclosure sale, as the case may be, any instrument which
may be necessary or appropriate to such successor landlord to evidence such
attornment. The Tenant shall, upon demand of the Mortgagee or any Receiver or
purchaser at the foreclosure sale, pay to the Mortgagee or to such Receiver or
purchaser, as the case may be, all rental monies then due or as they thereafter
become due.
FOURTH: Upon the attornment provided for in preceding Paragraph THIRD the
Tenant's occupancy shall thereafter be in full force and effect as under a
direct Lease between Mortgagee, the Receiver or the purchaser at the foreclosure
sale, as the case may be, and Tenant. It is specifically understood and agreed
that Mortgagee or any such Receiver or purchaser shall not be:
(a) liable for any act, omission, negligence or default of any prior
landlord, or
(b) subject to any offsets, claims or defenses which Xxxxxx might have
against any prior landlord; or
(c) bound by any rent or additional rent which Tenant might have paid for
more than one month in advance to any prior landlord; or
(d) bound by any amendment or modification of the Lease made without the
prior written consent of the Mortgagee.
FIFTH: On and after the date Tenant in good standing attorns to Mortgagee
or any Receiver or subsequent owner in pursuance of its agreement herein set
forth, Mortgagee, the Receiver or such subsequent owner will undertake and
perform all subsequent obligations of the Landlord as set forth in the Lease for
the benefit of and undisturbed occupancy of Tenant under the Lease.
SIXTH: Xxxxxx agrees it will not amend, modify nor abridge the Lease in
any way, nor cancel or surrender the same without prior written approval of the
Mortgagee other than by reason of a continued uncured material default of the
landlord under the Lease, nor will the Lease ever merge into the fee in the
event that Mortgagee acquires fee title to the Mortgaged Premises.
SEVENTH: Any notices or other communication to be given hereunder by
either party shall be in writing and shall be deemed to have been sufficiently
given or served for all purposes if sent by registered or certified mail with
return receipt requested to the other party hereto at its address above stated
or such other address of which written notification has been timely given to the
other party.
EIGHTH: Mortgagee has and shall have the continuing right to execute and
record in the Land Records of Gwinnett County, Georgia at any time, in its
unilateral discretion, a Declaration of Subordination for the purpose of
thereby subordinating its rights, title and interest in and under the Mortgage
to the rights, title and interest of Tenant under the Lease. Such Declaration
of Subordination shall, at Mortgagee's election, operate, function and be in
full force and effect for whatever period of time Mortgagee declares therein
that it shall be in force not exceeding the term of the Lease and any extensions
thereof and the said Declaration may be voided unilaterally by Mortgagee when it
so elects.
NINTH: Tenant waives any and all rights it may have to execute and record
after the date hereof any document purporting to again or further subordinate
its right, title or interest under the Lease to the lien of either the Mortgage
or any other mortgage or deed of trust or any ground lease or any agreement
modifying or amending the Mortgage except with the written consent of Mortgagee.
TENTH: This Agreement cannot be changed orally but only in writing signed
by both parties hereto.
ELEVENTH: This Agreement may be recorded by either party at its own
expense in the Land Records of Gwinnett County, Georgia whenever, in its sole
discretion, either party elects so to do.
TWELFTH: All of the terms, covenants and conditions hereof shall run with
the Mortgaged Premises and shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
2
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, acknowledged and delivered the day and year first above written.
SIGNED, SEALED AND DELIVERED TENANT:
in the presence of:
___________________________
___________________________ BY:_____________________________
MORTGAGEE:
___________________________ BY:______________________________
___________________________
The undersigned Owner of the leased and mortgaged premises hereby consents
to the foregoing Agreement and agrees to be bound by and subject to the terms
thereof.
BY:_______________________________
3
EXHIBIT "E"
SPECIAL STIPULATIONS
1
EXHIBIT "F"
GUARANTY OF LEASE
THIS GUARANTY, made and entered into as of the ______ day of ___________,
19___ by and between ___________________ (hereinafter referred to as
"Guarantor"), and WEEKS REALTY, L.P. (hereinafter referred to as "Landlord").
W I T N E S S E T H
-------------------
WHEREAS, __________________________ (hereinafter referred to as "Tenant"),
-------
is desirous of entering into the Lease hereinafter mentioned, as Tenant, and
WHEREAS, Guarantor has requested Landlord to enter into that certain lease
-------
(hereinafter referred to as the "Lease") attached hereto as Exhibit "A" and made
a part hereof with Tenant, as Tenant, of the premises described therein, and
WHEREAS, Xxxxxxxx has refused to enter into the Lease unless Guarantor
-------
guarantees the Lease in the manner hereinafter set forth;
WHEREAS, Guarantor acknowledges that Landlord's entering into the Lease
-------
will confer significant financial, business and other benefits on Guarantor;
NOW THEREFORE, to induce Landlord to enter into the Lease, which Lease is
-------------
dated this day and is being executed simulta-neously herewith, Guarantor hereby
agrees:
1. (a) Subject to the provisions hereof, Guarantor unconditionally
guarantees to Landlord and the successors and assigns of Landlord the full and
punctual payment, performance and observance by Tenant of all the terms,
covenants and conditions in the Lease contained on Xxxxxx's part to be kept,
performed or observed. This guaranty shall include any liability of Tenant
which shall accrue under the Lease for any period preceding as well as any
period following the term specified in the Lease. Guarantor waives notice of
any breach of default by Xxxxxx.
(b) If, at any time, default shall be made by Tenant in the
performance or observance of any of the terms, covenants or conditions in the
Lease contained on Tenant's part to be kept, performed or observed, Guarantor
will keep, perform and observe the same, as the case may be, in the place and
stead of Tenant.
(c) This is a guaranty of payment and performance and not of
collection. Guarantor's obligations hereunder are independent of the obligations
of Tenant and a separate action or actions for payment, damages or performance
may be brought and prosecuted against Guarantor, whether or not an action is
brought against Tenant, whether or not Tenant be joined in such action or
actions and whether or not notice be given or demand be made upon Tenant.
Landlord shall not be required to pursue any other remedies before invoking the
benefits of this guaranty.
2. Any act of Landlord, or the successors or assigns of Landlord,
consisting of a waiver of any of the terms or conditions of the Lease, or the
giving of any consent to any manner or thing relating to the Lease, or the
granting of any indulgences or extensions of time to Tenant, may be done without
notice to Guarantor and without releasing the obligations of Guarantor
hereunder.
3. The obligations of Guarantor hereunder shall not be released by
Xxxxxxxx's receipt, application or release of security given for the performance
and observance of the terms, covenants and conditions in the Lease contained on
Tenant's part to be performed or observed; nor by any modification of the Lease.
4. The liability of Guarantor hereunder shall in no way be affected by
(a) the release or discharge of Tenant in any creditors', receivership,
bankruptcy or other proceedings; (b) the impairment, limitation or modification
of the liability of Tenant or the estate of Tenant in bankruptcy, or of any
remedy for the enforcement of Tenant's liability under the Lease, resulting from
the operation of any present or future provision of the National Bankruptcy Act
or other status or from the decision of any court; (c) the rejection or
disaffirmance of the Lease in any such proceedings; (d) the assignment or
transfer of the Lease by Tenant; (e) any disability or other defense of Tenant;
(f) the cessation from any cause whatsoever of the liability of Tenant under the
Lease; (g) any action of Landlord permitted hereunder; (h) any right or power of
Tenant or anyone else to assert any claim or defense as to the invalidity or
unenforceability of the Lease; or (i) the assignment by Landlord of its interest
in the Lease.
5. Until all covenants and conditions in the Lease on Tenant's part to be
performed and observed are fully performed and observed, Guarantor: (a) shall
have no right of subrogation against Tenant by reason of any payments or acts of
performance by Xxxxxxxxx; (b) waives any right to enforce any remedy which
Guarantor now or hereafter shall have against Tenant by reason of any one or
more payments or acts of performance in compliance with the obligations of
Guarantor hereunder.
1
6. This guaranty shall apply to the Lease, any extension or renewal
thereof and to any holdover term following the term thereby granted or any
extension or renewal thereof.
7. This instrument may not be changed, modified, discharged or terminated
orally or in any manner other than by an agreement in writing signed by
Guarantor and Landlord.
8. This guaranty shall be governed by and construed and enforced in
accordance with the laws of the State of Georgia. Whenever possible, each
provision of this guaranty shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this guaranty
shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
guaranty.
9. Guarantor hereby waives the benefits of Section 10-7-24 of the
Official Code of Georgia Annotated to the fullest extent permitted under
applicable law.
10. Xxxxxxxxx agrees to pay any and all reasonable attorney's fees and
other expenses Landlord incurs in enforcing any of the obligations of Guarantor
hereunder. This obligation for payment of reasonable attorney's fees is in
addition to any limitations on liability that may be included elsewhere herein.
11. No delay or failure on the part of the Landlord in the exercise of any
right of remedy shall operate as a waiver thereof, and no single or partial
exercise by Landlord of any right or remedy herein shall preclude other or
further exercise thereof or the exercise of any other right or remedy whether
contained herein or in the Lease.
2
12. All notices, requests, demands and other communications required or
permitted to be given hereunder to Guarantor shall be sufficiently given if in
writing and delivered in person or sent by United States certified mail, return
receipt requested, postage prepaid, at the address set forth below or at such
other address as Guarantor shall have provided Landlord in writing. Any such
notice, request, demand or other communication by mail shall be deemed received
on the date appearing on the return receipt therefor. Rejection or other refusal
to accept or inability to deliver because of changed address of which no notice
has been received by Landlord shall constitute receipt of the notice, request,
demand or other communication sent. Notices, requests, demands and other
communications to Landlord shall be given as provided in the Lease.
IN WITNESS WHEREOF, Xxxxxxxxx has hereunto set his hand and seal as of the
day and year first above written.
Guarantor:
____________________________
By:_________________________
Name:_______________________
Title:______________________
(Corporate Seal)
GUARANTOR'S ADDRESS:
-------------------
_________________________
_________________________
_________________________
Address Space:
The within and foregoing guaranty is hereby accepted as of the day and year
first above written.
Accepted By
Landlord:
By: _________________________
Address Space:
3
